Lai Kwong Ming v. Director of Immigration

[English Translation]
CACV 1642/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. 1642 OF 2001

(ON APPEAL FROM HCAL NO. 418 OF 2001)

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Before: Hon Leong CJHC, Yuen J

Date of Hearing: 16 October 2001

Date of Judgment: 16 October 2001

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JUDGMENT

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Hon Leong CJHC (giving the judgment of the Court):

1.The Applicant in this case, Lai Kwong Ming, was born in Mainland China in 1957 and smuggled himself to Hong Kong in March 1979.  Subsequently, he applied to the Hong Kong Immigration Department for a Hong Kong identity card.  On 8 October 1979, he was permitted to remain in Hong Kong until 7 January 1980 and was issued a Hong Kong identity card.  On 4 January 1980, he was permitted to extend his stay in Hong Kong until 7 April.  He did not apply to the Hong Kong Immigration Department for a further extension when the permitted period of stay in Hong Kong expired, and therefore he became an overstayer in Hong Kong.

2.Between 1980 and 1988, the Applicant committed various offences and was sentenced to imprisonment on numerous occasions.  The last time he was sentenced to imprisonment was on 6 May 1988, when he was to serve a term of 18 months.  Upon his release on 1 August 1989, he applied to the Immigration Department for an extension of stay.  He was permitted to stay until 12 October 1991.  On 12 July 1991, he left Hong Kong.  Since then, there was no record in the Immigration Department of the Applicant leaving or entering Hong Kong by ordinary means.

3.The Applicant attempted to enter Hong Kong on 13 July 1994, but as he did not hold any travel documents, he was sent back to the Mainland on the same day by the Immigration Department.  In July 1994, the Applicant made a report of loss of identification document to the Immigration Department, but the Immigration Department informed him that his right of abode was no longer valid and that if he wanted to settle in Hong Kong, he would have to apply in the Mainland for a one-way permit.  After that, between 1995 and 2000, the Applicant surreptitiously entered Hong Kong again and committed offences.  He was sentenced to imprisonment for as many as 5 times, with each term lasting about 6 months.  The last time he was sentenced to imprisonment was on 8 June 2000 and he was released on 9 December of the same year.  On 15 December of the same year, the Director of Immigration issued a removal order against the Applicant.  The Applicant appealed to the Immigration Tribunal but the appeal was dismissed.  Thereafter, he filed a petition with the Chief Executive for a right of abode, but it was also refused.  The Applicant then applied to the court for judicial review of the removal order.

4.The Applicant argued that he was issued a Hong Kong identity card back in 1979 and in the past, after he had served his sentence, he had not been removed from Hong Kong, and hence he had been granted the right of abode in Hong Kong, and the removal order against him was unlawful.  The application for judicial review was heard on 24 January 2001 by Yeung J (as he then was), who dismissed it on 31 May 2001.  The reasons for the dismissal were as follows:

“The law clearly provides that, for a Chinese citizen to become a permanent resident of the Hong Kong Special Administrative Region with the right of abode, he/she has to prove that he/she has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

Imprisonment or detention pursuant to a sentence or order of any court shall not count as ordinary residence in Hong Kong and imprisonment or detention shall cause the period of residence to cease, resulting in the period of residence before and after the imprisonment not being a continuous period of residence.

Although the Applicant had been in Hong Kong from 1979 to 1989 and from 1994 to 2000, he had been in and out of prison many times during those periods.  If the periods of imprisonment were taken away, he had not continuously resided in Hong Kong for 7 years.”

5.Yeung J held that the Applicant was not a Hong Kong permanent resident and did not have the right of abode.  The decision of the Director of Immigration was justified and, in the process of making the decision, the Director had not committed any procedural error.  Nor was the decision unlawful.

6.On 19 June 2001, the Applicant applied for leave to appeal out of time against the decision of Yeung J.  Wong JA granted leave on 26 June 2001.  The Applicant puts forward a number of grounds of appeal.  First, he was issued a Hong Kong identity card back in 1979. His document of identity and residence registration in the Mainland have been vacated. Without the right of abode, he would become a person without an identity anywhere. He also contends that he had not been removed after he had served the sentence on each occasion, and that the document provided by the Immigration Department stating that he started to reside in Hong Kong illegally on 12 July 1991 was incorrect because he only started to reside in Hong Kong illegally after his period of stay expired on 12 October 1991.  His final ground of appeal is that he has a daughter in Hong Kong who needs his care and attention.

7.The relevant Immigration Ordinances before and after the reunification of Hong Kong with China invariably provide that only Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than 7 years may enjoy the right of abode in Hong Kong.  Remaining in Hong Kong under imprisonment or detention pursuant to a sentence or order of any court is not regarded as ordinary residence in Hong Kong.  As to the definition of continuous ordinary residence, Ribeiro JA (as he then was) pointed out in Commissioner of Registration v Registration of Persons Tribunal & Another [2000] 2 HKLRD 523 that two separate periods of ordinary residence do not constitute continuous ordinary residence. In another case, Commissioner of Registration v Registration of Persons Tribunal & Another [2000] 3 HKLRD 829, Hartmann J also held that where an applicant was imprisoned or detained when he remained in Hong Kong, the period of residence could be interrupted so that it would only start to run upon the end of the incarceration period. On the basis of the above two cases, Yeung J also held that the Applicant had not ordinarily resided in Hong Kong for a continuous period of 7 years.

8.The main issue in this application is whether the Applicant has ordinarily resided in Hong Kong for a continuous period of 7 years.  It is beyond dispute that the Applicant has remained in Hong Kong for over 7 years.  However, during his period of stay, he has committed offences at intervals and been imprisoned on and off.  Apart from the above cited authorities, in a recent case Fateh Muhammad v Commissioner of Registration & Another [2001] HKLRD 659, the Court of Final Appeal also held that a period of imprisonment or detention is not regarded as a period of ordinary residence in Hong Kong within the meaning of Article 24 of the Basic Law.  Therefore, the period during which the Applicant was imprisoned will not form part of his ordinary residence in Hong Kong.  Regarding the question of “continuous residence”, Ribeiro JA stated in the abovementioned Court of Appeal case that the law excluded the period of the applicant’s imprisonment from computation of his period of ordinary residence, and as a result, there were two periods of ordinary residence, one pre-imprisonment and the other post-imprisonment.  However, these two periods, having been separated by the imprisonment, could not constitute continuous ordinary residence.

9.In our view, the Applicant’s stay in Hong Kong has been intermittent and does not constitute continuous ordinary residence.  Yeung J correctly took this as the basis of refusing the Applicant’s application.

10.The fact that the Applicant was issued a Hong Kong identity card in 1979 does not mean that he was granted the right of abode in Hong Kong.  His identity card only allowed him to remain in Hong Kong until early 1980.  Upon expiry, he did not apply for an extension of stay and the Immigration Department had declared his identity card invalid.  As a result, this ground of appeal must fail.

11.Similarly, the fact that the Applicant’s document of identity and permanent residence in the Mainland have been deregistered cannot form the basis of his application and of contending that the Director of Immigration had no right to remove him from Hong Kong.  In summary, none of the Applicant’s grounds of appeal demonstrates that Yeung J’s decision was unjustified or in other respects incorrect, or that the decision of the Director of Immigration was unreasonable, or that the Director of Immigration committed any procedural error in deciding to remove the Applicant from Hong Kong.  Accordingly, the appeal is dismissed.

The Applicant in person.

Mr Josiah Lee, instructed by the Secretary for Justice, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor